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The Vocabulary of "Feminism" at the Supreme Court

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The Vocabulary of By Any Other Name: The Vocabulary of "Feminism" at the Supreme Court McKaye L. Neumeistert ABSTRACT: Feminist legal theory is a significant area ofscholarly inquiry, and the Supreme Court is no stranger to feminist legal arguments. Yet there has been no previous attempt to determine how the Court reacts to and makes use of the vocabularyoffeminism. This Note conducts an empiricalstudy ofSupreme Court cases, and finds that-despite ample opportunity-the Court has only substantively discussed the words 'feminist" or 'feminism " twice in its history, both times in non-majority opinions. The Note attempts to understand this' aversion to the vocabulary offeminism, examiningfactors from within the legal profession as well as the continuing societal aversion to the words. The Note' contends that the Court both reflects and exacerbates society's broader discomfort with the feminist label, and that the Courtshould do its partto reverse this semantic cycle. INTRODUCTION......................................................... 242 I. THE STAKES OF FEARING A NAME ..................................... 243 II. EMPIRICAL STUDY OF "FEMINISM" AT THE SUPREME COURT ................... 246 A. The Dearth of "Feminism" at the Supreme Court .......................... 246 B. Deliberate Bypass...................................249 III. MAKING SENSE OF THE JUDICIAL AVERSION ....................... 253 A. Intra-Legal Factors ............................ ....... 254 1. Courts of Appeals ........................ ........ 254 2. Supreme Court Briefs ..................... ........ 257 3. Other Factors............................ ........ 259 B. Continuing Modem Hostility to Feminism ................. 262 1. The Fact of Popular Discomfort..............................262 2. Source of Societal Resistance ................... 263 t Yale Law School, J.D. 2017; Yale College, B.A. 2012. My heartfelt thanks to Noah Lindell for his helpful comments on earlier drafts, and to Professor Amy Chua for her guidance and support. Thanks also to the wonderful editors of the Yale Journal of Law and Feminism-especially Meghan Brooks, Callie Wilson, Kelsey Gann, and Kayla Oliver-for their valuable edits and suggestions. Copyright C 2017 by the Yale Journal of Law and Feminism 242 Yale Journal of Law and Feminism [Vol. 29:241 C. Reversing the Feedback Effect .......................... 265 CONCLUSION .................................................... ...... 266 "Always use the proper name for things. Fear of a name increasesfear of the thing itself" INTRODUCTION It is 2017, and the United States has just elected a new president: a president who bragged about actions tantamount to sexual assault, publicly evaluated women based on their appearance, and proclaimed that women who obtain abortions should be punished by law.2 The outcome of this election has been characterized as the result of anti-feminist backlash.3 Many Americans exhibited bias, overt or implicit, against Hillary Clinton because of her gender;' others saw in Donald Trump's promise to "Make America Great Again" a return to a time in which traditional family roles held sway.' One recent poll found that male Republicans believe it's a better time to be a woman than a man, while "only 19 percent of respondents said they considered themselves feminists." 6 This election underscored the extent to which identifying as a feminist and openly supporting feminism by its name remains controversial. A popular aversion to the "F-word" has existed for decades and has yet to be fully eradicated. This Note demonstrates that aversion to the "F-words"- "feminist" and "feminism," which I refer to together as the "vocabulary of feminism"7 -xtends to the nation's highest court. In fact, excluding names of 1. J.K. ROWLING, HARRY POTTER AND THE SORCERER'S STONE 298 (paperback ed. 1999). 2. Jill Filipovic, What Does President Trump Mean for Feminists?, WASH. POST (Nov. 9, 2016), https://www.washingtonpost.com/posteverything/wp/2016/11/09/what-does-president-trump-mean-for- feminists/?utm term=.c9a64alc4fa0. 3. Amanda Marcotte, Fighting Back Against Anti-Feminist Backlash: Women Can Win the Trump Era's New Culture War, SALON (Dec. 29, 2016), http://www.salon.com/2016/12/29/fighting-back- against-anti-feminist-backlash-women-can-win-the-trump-eras-new-culture-war. 4. See, e.g., Peter Beinart, Fear of a Female President, ATLANTIC (Oct. 2016), http://www.theatIantic.com/magazine/archive/2016/10/fear-of-a-female-president/497564; Carl Bialek, How UnconsciousSexism Could Help Explain Trump's Win, FIVETHIRTYEIGHT (Jan. 21, 2017, 8:42 AM), https://fivethirtyeight.com/features/how-unconscious-sexism-could-help-explain-trumps-win. 5. See, e.g., Celeste Katz, Think America Was Better Off in the 1950s? You're Probably a Donald Trump Supporter., MIC (Oct. 25, 2016), https://mic.com/articles/157553/think-america-was-better-off-in- the-1950s-you-re-probably-a-donald-trump-supporter#.V30EUS3EV; Susan B. Ridgely, The Role of Family Values in the 2016 Presidential Election, OUPBLOG (Jan. 4, 2017), http://blog.oup.com/2017/01/family-values-presidential-election/#sthash.eWgWeDVd.dpuf. 6. Claire Cain Miller, Republican Men Say It's a Better Time to Be a Woman Than a Man, N.Y. TIMES: UPSHOT (Jan. 17, 2017), http://www.nytimes.com/2017/01/17/upshot/republican-men-say-its-a- better-time-to-be-a-woman-than-a-man.html. 7. An exhaustive "vocabulary of feminism"-as the phrase might be most naturally understood- would entail a whole suite of words and phrases commonly used in feminist theory or feminist politics, 2017] Note: By Any Other Name 243 parties and amici, the U.S. Supreme Court has invoked the vocabulary of feminism only once in a majority opinion. That the popular hesitation to use the vocabulary of feminism also invades the judicial consciousness is troubling. Though we cannot definitively divine the reasons why the Supreme Court has largely avoided the words, that avoidance only amplifies feminism's taboo status. In Part I, this Note explores the importance of word choice in the Supreme Court, and why it matters whether the Court uses-or avoids-certain vocabulary. Part II empirically explores the lack of feminist vocabulary used by the Supreme Court, demonstrating that avoidance of the "F-words" endures despite relevant opportunities to use them. Part III considers various factors that may be influencing the lack of vocabulary, including popular discomfort with the feminist vocabulary. Ultimately, I conclude that the dearth of feminist vocabulary in the Supreme Court is both a byproduct of-and contributes to- the general societal aversion to "feminism." I. THE STAKES OF FEARING A NAME Whether or not the Supreme Court uses the words "feminist" or "feminism" in its opinions may appear a relatively insignificant issue of word choice. But as a general matter, word choice is important because it influences reality. People from across the political spectrum acknowledge that political, corporate, and personal word choice influence "how people think and how they behave." 8 In polling, for example, "word choices and context ... ma[k]e a difference in how respondents react[] to the questions." 9 And studies have demonstrated that the metaphors and words we choose in describing a problem influence how we reasonio and how we conceptualize the solutions to a problem." It is also acknowledged in legal literature that "language is an 'active component' in the such as "intersectionality," "gender normativity," "patriarchy," and "sex-role stereotyping." However, "feminist vocabulary" and "vocabulary of feminism" as used throughout this Note are limited to the nominatives themselves: "feminist(s)" and "feminism(s)." 8. FRANK LUNTZ, WORDS THAT WORK: IT'S NOT WHAT YOU SAY, IT'S WHAT PEOPLE HEAR, at xxi-xxii (2007). 9. Michael Dimock, Polling When Public Attention is Limited: Diferent Questions, Different Results, PEW RES. CTR.: FACTTANK (May 22, 2013), http://www.pewresearch.org/fact- tank/2013/05/22/polling-when-public-attention-is-limited-different-questions-different-results. 10. Paul H. Thibodeau & Lera Boroditsky, Natural Language Metaphors Covertly Influence Reasoning, PLOS ONE (Jan. 2, 2013), http://joumals.plos.org/plosone/article?id=10.1371/joumal.pone.0052961. 11. See id.; Mitch Moxley, Can Language Influence Our Perception of Reality?, SLATE (June 2014), http://www.slate.com/articles/news-and politics/uc/2014/06/can_1anguage-influence-our-perception-o f reality.html. 244 Yale Journal of Law and Feminism [Vol. 29:241 creation and constitution of social relations" and "has the power to regulate human social relations in subtle ways that are difficult to see."l 2 Word choice by judges in written opinions is particularly important. Vocabulary is one of a judge's "tools of communication," constituting part of a judge's style.1 3 A "handbook to guide judges in how to best draft opinions ... emphasizes that word choice is especially important 'to the judicial writer."'"4 Judges "can make subtle distinctions between ideas by changing a single word."' 5 Indeed, [t]he breadth and malleability of the English language allow a judge a wide range of options in selecting the "right word," and this selection may have "special legal significance" . .. Justice Scalia, recognizing the importance of each individual word, called himself a "snoot," a "nitpicker for the mot juste, for using a word precisely the way it should be used[,] [n]ot dulling it by misuse." 16 The words in judicial opinions communicate more than just objective information. "Language is 'a medium of social action' not 'merely a vehicle of communication' and the written judicial opinion is the primary, if not the sole, medium in which judges within our judicial system execute language."" The particular word choice of an opinion is significant because "it is the language of the Court that is used as a precedent for future decisions. Thus, the words used . by the Court [] are important to understand." The relation of the courts to feminism also matters, because of the role of the courts in furthering the goals of gender equality. As Professor Wendy Williams wrote: The way courts define equality, within the limits of their sphere, does indeed matter in the real world..
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